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LPL4802 EXAM PORTFOLIO 2024
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- LPL4802 (LPL4802)
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- University Of South Africa
LPL4802 EXAM PORTFOLIO 2024
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LPL4802LAW OF DAMAGES
NOTES, QUESTIONS AND ANSWERS
FOR FURTHER CLARIFICATION PLEASE
KEVINLUGWIRI98@GMAIL.COM
, lOMoARcPSD|48946436
QUESTION 1: QUANTUM OF DAMAGES FOR PATRIMONIAL LOSS CAUSED BY
CERTAIN FORMS OF DELICT
a) Differences between the object of contractual and delictual damages.
1
The Court in Trotman v Edwick held that a litigant who sues on contract sues to
have his bargain or its equivalent in money or in money and kind. Whereas, the
litigant who sues on delict sues to recover the loss which he has sustained because
of the wrongful conduct of another, in other words; the amount by which the litigant’s
patrimony has been diminished by such conduct be restored to him. The measure of
damages adopted by the court was the difference between the purchase price and
the actual value of the property sold. The court would not, however, lay down a
general rule and emphasized that each case depends upon its own facts. A plaintiff
may, of course, recover damages only for such loss as was caused by the fraud.
The above reasoning by the Court was further confirmed in Glaston House (Pty) Ltd
2
v Inag (Pty) Ltd where the court held that the purpose of delictual damages is to
restore to the purchaser the loss suffered/sustained because of the wrongful conduct
of the seller, that is, the amount by which his patrimony has thereby diminished. The
appellant is accordingly entitled to recover the amount by which its patrimony has
been reduced as a result of the non-disclosure.
Therefore, it can be concluded that in contract the respondent has not alleged that
the value of the plant is less than the respondent has paid for it. What the
respondent does, in effect, is to sue for the equivalent in money of its bargain. That
is the contractual measure of damages.’ Therefore, the claimant in breach of
contract is entitled to recover damages for the loss of his bargain. In tort (delict), on
the other hand, no question of loss of bargain can arise: the claimant is not
complaining of failure to implement a promise but of failure to leave him alone.
1 Trotman v Edwick 1951 (1) SA 443 (A) [449].
2 Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846.
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b) Punitive damages in the South African common law of damages (chp 13, last
sentence on page 441, footnote 147)
Section 24(3) of the Copyright Act 98 of 1978 avers that where in an action under
this section an infringement of copyright is proved or admitted, and the court having
regard, in addition to all other material considerations, to the flagrancy of the
infringement and any benefit shown to have accrued to the defendant by reason of
the infringement, is satisfied that effective relief would not otherwise be available to
the plaintiff, the court shall in assessing damages for the infringement have power to
award such additional damages as the court may deem fit.
In Priority Records (Pty) Ltd v Ban-Nab Radio and TV,3 the court held that the
legislature could not have intended s 24(3) to permit the award of damages not
recognized by the South African common law, damages may be similar to that
obtainable in terms of the actio iniuriarum but is not restricted thereto. In casu the
court refused to award additional damages.
It was further held in CCP Record Co (Pty) Ltd v Avalon Record Centre4 that one
must not by peering at the words ’’effective’’ and ’’additional’’ in the expressions
‘‘effective relief’’ and ‘‘additional damages’’ lose sight of the fact that, by making
benefit to a defendant and flagrancy criteria for an award of damages, the section
not merely augments existing delictual remedies by widening the power of the Court
to award damages but introduces relief where no cause of action for relief had
existed before. Additional damages, then, are damages of a kind which would not,
but for the provisions of s 24(3), be recoverable at all, either because they are
unprovable (and the scope for finding damages unprovable in our law is small) or
because, other than in s 24(3), no cause of action for their recovery exists.
In Fose v Minister of Safety and Security 5 the stated that the question whether, in
addition to compensatory damages, ‘‘penal’’ or ‘‘punitive’’ or ‘‘exemplary’’ damages
3 Priority Records (Pty) Ltd v Ban-Nab Radio and TV 1988 (2) SA 281 (D).
4 CCP Record Co (Pty) Ltd v Avalon Record Centre 1989 (1) SA 445 (C) [449–50].
5 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [822].
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are, or ought to be, awarded in delictual claims is a matter of some debate in South
Africa. It appears to be accepted that in the Aquilian action and in the action for pain
and suffering an award of punitive damages has no place. The Appellate Division
has, however, recognised that in the case of defamation punitive damages may in
appropriate cases be awarded. The question whether an award has a punitive
function, is not determined by its effect on the defendant. Criteria which are relevant
here, are, inter alia, whether the amount exceeds the plaintiff’s damage, and
whether factors such as the defendant’s attitude, blameworthiness and patrimonial
position as well as the plaintiff’s feeling of outrage are considered.
In Jones v Krok6 the court had to decide whether courts in South Africa should
enforce a foreign judgment for punitive damages. The court held that it would be
wrong in principle to refuse to enforce a foreign order of punitive damages merely
because it was unknown in South Africa: it could not be said that the principle
involved was necessarily unconscionable or excessive or exorbitant. However, the
punitive damages awarded in the instant case amounted to granting the plaintiff
double the amount of damages she had claimed and was awarded. The court held
that this award was so excessive and exorbitant that it was contrary to public policy
in South Africa and that this award of punitive damages would therefore not be
enforced.
Therefore, one can conclude that that the Court is in s 24(3) given an enormously
wide discretion, limited only by the consideration that the money which the
defendant is made to pay must go to providing relief for the plaintiff. The defendant
may not simply be fined. The court held that it is not helpful to call the ‘‘additional
damages’’ ‘‘punitive’’ or ‘‘exemplary’’. Too much imported confusion and controversy
surrounds these terms.’
QUESTION 2: QUANTUM OF DAMAGES IN SPECIFIC CASES OF BREACH OF
CONTRACT
6 Jones v Krok 1996 (1) SA 504 (A) [515–17].
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